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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) JANUARY 14, 1997
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IRT PROPERTY COMPANY
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
GEORGIA 1-7859 58-1366611
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(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
200 GALLERIA PARKWAY, SUITE 1400, ATLANTA, GA 30339
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (770) 955-4406
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N/A
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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Item 5. Other Events
IRT Property Company (the "Company") has completed an underwritten
offering (the "Offering") of 4,000,000 shares of Common Stock (the "Common
Stock") at a price to the public of $11.25 per share, which was the closing
price of the Company's Common Stock on the New York Stock Exchange on
January 8, 1997, the date the Offering was priced. This Offering was made
pursuant to a Prospectus Supplement dated January 8, 1997 to the Prospectus
dated November 9, 1995 included as part of the Company's shelf registration
statement (Commission File No. 33-63523) on Form S-3. The Underwriting
Agreement also grants the underwriter an option to purchase up to 653,747 shares
of Company Common Stock at $11.25 per share, solely to cover overallotments.
The net proceeds from the sale of the Common Stock are estimated to be
approximately $42.6 million. These proceeds will be used to reduce debt and for
general corporate purposes, with the expectation that the Company will continue
to utilize debt to fund acquisitions, redevelopments and expansions of shopping
center properties.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
The Company is filing with this current report a copy of the following
document in connection with the Offering of Common Stock:
EXHIBIT DESCRIPTION
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1 Underwriting Agreement
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
IRT PROPERTY COMPANY
(Registrant)
Date: January 15, 1997 BY: /s/ Mary M. Thomas
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Mary M. Thomas
Executive Vice President and
Chief Financial Officer
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS TO CURENT REPORT ON FORM 8-K
DATED JANUARY 14, 1997
IRT PROPERTY COMPANY
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INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
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1 Underwriting Agreement
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4,358,315 Shares
IRT PROPERTY COMPANY
Common Stock
($1.00 Par Value)
UNDERWRITING AGREEMENT
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January 8, 1997
PAINEWEBBER INCORPORATED
1285 Avenue of the Americas
New York, New York 10019
Dear Ladies and Gentlemen:
IRT Property Company, a Georgia corporation (the "Company"),
confirms its agreement with you, as underwriter, as follows. Further, the
persons listed on Schedule A hereto (the "Sellers") also confirm certain
agreements with you, with respect to the matters relating to them set forth
below, as follows:
1. DESCRIPTION OF SECURITIES. The Company proposes to issue
and sell to you 4,000,000 shares of its common stock, $1.00 par value (the
"Common Stock"). The Sellers, acting severally and not jointly, propose to sell
to you 358,315 shares of Common Stock. The shares of Common Stock to be issued
and sold by the Company, together with the shares of Common Stock to be sold by
the Sellers, are hereinafter referred to as the "Securities."
2. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties of the Company. The Company
represents and warrants to and agrees with you that:
(i) A registration statement on Form S-3 (File No.
33-63523) with respect to the Securities being offered by the Company,
including a prospectus, has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (the "1933 Act Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, has been filed with the Commission and has
been declared effective. Such registration statement and prospectus may
have been amended or supplemented prior to the date of this
Underwriting Agreement; any such amendment or supplement was so
prepared and filed, and any such amendment
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filed after the effective date of such registration statement has been
declared effective. No stop order suspending the effectiveness of the
registration statement has been issued, and no proceeding for that
purpose has been instituted or threatened by the Commission. A
prospectus supplement (the "Prospectus Supplement") setting forth the
terms of the offering, sale and plan of distribution of the Securities
being offered by the Company and additional information concerning the
Company and its business and the Sellers has been or will be so
prepared and will be filed pursuant to Rule 424(b) of the 1933 Act
Rules and Regulations on or before the second business day after the
date hereof (or such earlier time as may be required by the 1933 Act
Rules and Regulations). Copies of such registration statement and
prospectus, any such amendments or supplements and all documents
incorporated by reference therein that were filed with the Commission
on or prior to the date of this Underwriting Agreement (including one
fully executed copy of the registration statement and of each
amendment thereto for you and for your counsel) have been delivered or
made available to you and your counsel. Such registration statement,
as it may have heretofore been amended, is referred to herein as the
"Registration Statement," and the final form of prospectus included in
the Registration Statement, as supplemented by the Prospectus
Supplement, is referred to herein as the "Prospectus." Any reference
herein to the Registration Statement, the Prospectus or any amendment
or supplement thereto shall be deemed to refer to and include the
documents incorporated by reference therein, and any reference herein
to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement or Prospectus shall be deemed to refer to and
include the filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein. For
purposes of this Underwriting Agreement, all references to the
Registration Statement, the Prospectus or any amendment or supplement
thereto shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering Analysis and Retrieval
System (EDGAR), and such copy shall be identical to any Prospectus
delivered to you for use in connection with the offering of the
Securities by the Company.
(ii) Each part of the Registration Statement (excluding
any prospectus supplement with respect to an offering of securities
other than the offering of the Common Stock by the Company contemplated
hereby), when such part became or becomes effective, and the Prospectus
and any amendment or supplement to such Registration Statement or such
Prospectus, on the date of filing thereof with the Commission and at
the Closing Date (as hereinafter defined), and, if later, at an Option
Closing Date (as hereinafter defined) conformed or will conform in all
material respects with the requirements of the Act and the 1933 Act
Rules and Regulations; each part of the Registration Statement
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(excluding any prospectus supplement with respect to an offering of
securities other than the offering of the Common Stock by the Company
contemplated hereby), when such part became or becomes effective did
not or will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; the Prospectus and any
amendment or supplement thereto, on the date of filing thereof with
the Commission and at the Closing Date, and, if later, at an Option
Closing Date, did not or will not include an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; except that the foregoing shall not apply
to statements in, or omissions from, any such document in reliance
upon, and in conformity with, written information concerning you that
was furnished to the Company by you specifically for use in the
preparation thereof.
(iii) The documents incorporated by reference in the
Registration Statement, the Prospectus and any amendment or supplement
to such Registration Statement or such Prospectus, when they became or
become effective under the Act or were or are filed with the Commission
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as the case may be, conformed or will conform in all material
respects with the requirements of the Act, the 1933 Act Rules and
Regulations, the Exchange Act and the rules and regulations of the
Commission thereunder (the "Exchange Act Rules and Regulations"), as
applicable.
(iv) The consolidated financial statements of the
Company, together with the related schedules and notes thereto, set
forth or included or incorporated by reference in the Registration
Statement and Prospectus fairly present, in all material respects, the
financial condition of the Company and its consolidated subsidiaries as
of the dates indicated and the results of operations, changes in
financial position, stockholders' equity and cash flows for the periods
therein specified, in conformity with generally accepted accounting
principles ("GAAP") consistently applied throughout the periods
involved (except as otherwise stated therein and except for changes in
GAAP). In addition, any pro forma financial statements of the Company,
and the related notes thereto, included or incorporated by reference in
the Registration Statement and the Prospectus present fairly, in all
material respects, the information provided therein, have been prepared
in accordance with the Commission's rules and guidelines with respect
to pro forma financial statements and have been properly compiled on
the basis described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
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(v) Arthur Andersen LLP, whose reports are incorporated
by reference in the Registration Statement, are and, during the periods
covered by their reports, were independent public accountants as
required by the Act and the 1933 Act Rules and Regulations.
(vi) The only subsidiaries (as defined in the 1933 Act
Rules and Regulations) of the Company are the subsidiaries listed on
Schedule B hereto (the "Subsidiaries"). The Company and each of its
Subsidiaries has been duly incorporated or formed, as the case may be,
and is an existing corporation, general or limited partnership or other
business entity, as the case may be, in good standing under the laws of
its jurisdiction of incorporation or formation, as the case may be. The
Company and each of its Subsidiaries has full power and authority
(corporate and other) to conduct its business as described in the
Registration Statement and Prospectus, and is duly qualified or
registered to do business in each jurisdiction in which it owns or
leases real property or in which the conduct of its business requires
such qualification or registration, except where the failure to be so
qualified or registered, considering all such cases in the aggregate,
would not have a material adverse affect on the business, properties,
financial position or results of operations of the Company and its
Subsidiaries taken as a whole; and, other than the Subsidiaries, the
Company owns no stock or other beneficial interest in any corporation,
partnership, joint venture or other business entity which is a
controlling interest in such entity or which interests are,
individually or collectively, material to the Company and its
Subsidiaries on a consolidated basis.
(vii) All of the issued and outstanding capital stock or
ownership interests of each Subsidiary has been duly authorized and
validly issued, is fully paid and nonassessable and, other than 99
shares of the Class A (voting) common stock of IRT Capital Corporation
(the "IRT Capital Voting Stock") and 396 shares of Class B common stock
of IRT Capital Corporation (the "IRT Capital Class B Stock"), is wholly
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except as otherwise stated in IRT Capital Corporation's
articles of incorporation, by-laws and other governing documents. The
IRT Capital Voting Stock and the IRT Capital Class B Stock not owned by
the Company has been duly authorized and validly issued, is fully paid
and nonassessable and is owned by certain individuals without transfer
restrictions (other than those arising under the Act, the 1933 Act
Rules and Regulations, the Exchange Act, the Exchange Act Rules and
Regulations and state securities laws, as applicable; and except as
otherwise stated in IRT Capital Corporation's articles of
incorporation, by-laws and other governing documents).
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(viii) All of the issued and outstanding shares of capital
stock of the Company (including the Securities being offered by the
Sellers) have been duly authorized and are validly issued, fully paid
and nonassessable by the Company and conform to the description thereof
in the Prospectus. The stockholders of the Company have no preemptive
rights with respect to the Common Stock.
(ix) The Securities being offered by the Company will be
as of the Closing Date, and the Optional Securities (as hereinafter
defined) will be as of the Option Closing Date, duly authorized by the
Company for issuance and sale pursuant to this Underwriting Agreement;
and when issued and delivered by the Company pursuant to this
Underwriting Agreement against payment of the consideration therefor
specified herein, will be validly issued, fully paid and nonassessable.
The Securities conform to the description thereof in the Prospectus and
will not be subject to any preemptive rights of any security holder of
the Company.
(x) Except as contemplated in the Prospectus,
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, the Company and its
Subsidiaries have not incurred any liabilities or obligations, direct
or contingent, or entered into any transactions, not in the ordinary
course of business, that are material to the Company and its
Subsidiaries on a consolidated basis, there has not been any material
change in the capital stock or structure, short-term debt or long-term
debt of the Company or any material adverse change in the capital stock
or structure, short-term debt or long-term debt of the Subsidiaries, or
any material adverse change, or any development that is reasonably
likely to involve a prospective material adverse change, in the
condition (financial or other), business, prospects, net worth or
results of operations of the Company and its Subsidiaries on a
consolidated basis and, except for regular distributions with respect
to the Common Stock, in amounts per share that are consistent with past
practice or the Company's articles of incorporation or by-laws, there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(xi) Except as set forth in the Prospectus, there is not
pending or, to the knowledge of the Company, threatened any action,
suit or proceeding to which the Company or any of its Subsidiaries is a
party, or that any of its properties or other assets is the subject of,
before or by any court or governmental agency or body, that is
reasonably likely to result in any material adverse change in the
condition (financial or other), business, prospects, net worth or
results of operations of the Company and its Subsidiaries on a
consolidated basis.
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(xii) During the period of at least the last 36 calendar
months prior to the date of this Underwriting Agreement, the Company
has timely filed with the Commission all documents and other material
required to be filed pursuant to Sections 13, 14 and 15(d) under the
Exchange Act.
(xiii) There are no contracts or documents of the Company
that are required to be filed as exhibits to the Registration Statement
or to any of the documents incorporated by reference therein by the Act
or the Exchange Act or by the rules and regulations of the Commission
thereunder that have not been so filed.
(xiv) This Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(xv) The execution of this Underwriting Agreement and
the consummation of the transactions contemplated herein will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, (i) any agreement or instrument to which
the Company or its Subsidiaries is a party or by which they are bound
or to which any of the property or other assets of the Company or its
Subsidiaries are subject, except where such default(s) would not have a
material adverse effect on the Company and its Subsidiaries on a
consolidated basis, (ii) the articles of incorporation, by-laws,
certificate of general or limited partnership, partnership agreement or
other organizational document, as applicable, of the Company or its
Subsidiaries, or (iii) any statute, order, rule or regulation of any
court of governmental agency or body having jurisdiction over the
Company or its Subsidiaries or any of their properties or other assets;
no consent, approval, authorization or order of, or filing with, any
court or governmental agency or body is required for the consummation
of the transactions contemplated by this Underwriting Agreement in
connection with the issuance or sale of the Securities being offered by
the Company, except such as may be required under the Act and
applicable state securities laws (if any) or pursuant to the listing
requirements of the New York Stock Exchange ("NYSE"); and the Company
has full power and authority to authorize, issue and sell the
Securities to be offered by it as contemplated by this Underwriting
Agreement, free of any preemptive rights.
(xvi) The Company and its Subsidiaries are not in default
under any indenture, mortgage, deed of trust, voting trust agreement,
loan agreement, bond, debenture, note agreement or the evidence of
indebtedness, lease, contract or other agreement or instrument to which
they are a party or by which they or any of their properties or other
assets are bound, the violation of which would individually or in the
aggregate have a material adverse effect on the Company and its
Subsidiaries on a consolidated basis, and no other party under any such
agreement or instrument to which the Company or
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its Subsidiaries are a party is, to the knowledge of the Company, in
default thereunder where such default would have a material adverse
effect on the Company and its Subsidiaries on a consolidated basis; and
the Company and its Subsidiaries are not in violation of their
respective articles of incorporation, by-laws, certificates of general
or limited partnership, partnership agreements, or other organizational
documents, as the case may be.
(xvii) The Company and each of its Subsidiaries have good
and marketable title to all properties and assets described in the
Prospectus as owned by them, free and clear of all liens, charges,
encumbrances or restrictions, except as described in the Prospectus or
where such exceptions do not have a material adverse effect on the
Company and its Subsidiaries taken as a whole, and the Company and its
Subsidiaries have valid, subsisting and enforceable leases for the
properties described in the Prospectus as leased by the Company and its
Subsidiaries with such exceptions, individually and in the aggregate,
as do not interfere with the use made and proposed to be made of such
properties by the Company and its Subsidiaries and would not have a
material adverse effect on the Company and its Subsidiaries taken as a
whole; except as set forth in Schedule C, no tenant under any of the
leases pursuant to which the Company or its Subsidiaries lease their
properties has an option or right of first refusal to purchase the
premises demised under such lease; the use and occupancy of each of the
properties of the Company and its Subsidiaries complies with all
applicable codes and zoning laws and regulations with such exceptions,
individually and in the aggregate, as would not have a material adverse
effect on the Company and its Subsidiaries taken as a whole; the
Company and its Subsidiaries have no knowledge of any pending or
threatened condemnation or zoning change that will affect the size of,
use of, improvement of, construction on, or access to any of the
properties of the Company and its Subsidiaries with such exceptions,
individually and in the aggregate, as would not have a material adverse
effect on the Company and its Subsidiaries taken as a whole; and the
Company and its Subsidiaries have no knowledge of any pending or
threatened proceeding or action that will affect the size of, use of,
improvements on, construction on, or access to any of the properties of
the Company or its Subsidiaries with such exceptions, individually and
in the aggregate, as would not have a material adverse effect on the
Company and its Subsidiaries taken as a whole.
(xviii) The Company or its Subsidiaries (including its
predecessors) have acquired title insurance with respect to each of the
properties described in the Prospectus as being owned by the Company or
its Subsidiaries, except, in each case, where the failure to maintain
such title insurance is not reasonably likely to have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business
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affairs or business prospects of the Company and its Subsidiaries taken
as a whole.
(xix) The mortgages and deeds of trust encumbering the
properties and assets described or referred to in the Prospectus are
not convertible into the equity of the Company or any Subsidiary.
(xx) Except as described, or incorporated by reference,
in the Registration Statement and the Prospectus or included in the
environmental reports reviewed by you or your counsel regarding the
Company's properties, (i) there does not exist on any of the properties
described in the Prospectus any hazardous substances, hazardous
materials, toxic substances or waste materials (collectively,
"Hazardous Materials") in unlawful quantities which, individually and
in the aggregate, are reasonably likely to have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
Subsidiaries taken as a whole, (ii) there has not occurred on or, to
the Company's knowledge, off such properties any unlawful spills,
releases, discharges or disposal of Hazardous Materials, which presence
or occurrence is reasonably likely to have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its Subsidiaries taken
as a whole, and (iii) the Company and its Subsidiaries have not failed
to comply with all applicable local, state and federal environmental
laws, regulations, ordinances and administrative and judicial orders
relating to the generation, recycling, sale, storage, handling,
transport and disposal of any Hazardous Materials, except for such
failures which are not reasonably likely to have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
Subsidiaries taken as a whole.
(xxi) Property and casualty insurance in favor of each of
the Company and its Subsidiaries is maintained with respect to each of
the properties owned by each of them in an amount and on such items as
is reasonable and customary for businesses of this type.
(xxii) Except for the Sellers, no holder of outstanding
shares of capital stock of the Company has any rights to the
registration of shares of capital stock of the Company which would or
could require such securities to be included in the Registration
Statement.
(xxiii) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as described therein, (i) there has not been any material
adverse change in the business, results of operations, prospects or
condition (financial or otherwise) of
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the Company and its Subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business; and (ii)
neither the Company nor any of its Subsidiaries has sustained any
material loss or interference with its assets, businesses or properties
(whether owned or leased) from fire, explosion, earthquake, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order
or decree that materially and adversely affects the business,
prospects, condition (financial or other), net worth or results of
operations of the Company and its Subsidiaries taken as a whole.
(xxiv) The Company has filed all federal, state, local and
foreign income tax returns which have been required to be filed and has
paid all taxes indicated by said returns and all assessments received
by it to the extent that such taxes have become due and payable, and
which are not being contested by the Company in good faith.
(xxv) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by the Company of this Underwriting
Agreement and the consummation of the transactions herein contemplated
has been or will be obtained or made and is or at the Closing Date will
be in full force and effect.
(xxvi) The Company and its Subsidiaries hold all material
licenses, certificates and permits from governmental authorities which
are necessary to the conduct of their businesses and are in compliance
with the terms and conditions of such licenses, certificates and
permits; and to the best of the Company's knowledge, the Company and
its Subsidiaries have not infringed on any patents, patent rights,
trade names, trademarks or copyrights, which infringement is reasonably
likely to have a material adverse affect upon the business, prospects,
condition (financial or other), net worth or results of operations of
the Company and its Subsidiaries taken as a whole.
(xxvii) To the Company's knowledge, the Company and its
Subsidiaries are conducting their respective businesses in compliance
with all applicable laws, orders, rules and regulations of the
jurisdictions in which they are conducting business, including, without
limitation, the Americans with Disabilities Act of 1990 and all
applicable local, state and federal employment, truth-in-advertising,
franchising and immigration laws and regulations, except where the
failure to be so in compliance would not have a material adverse effect
on the assets or properties, business, results of operations, prospects
or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole.
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(xxviii) To the Company's knowledge, no transaction has
occurred between or among the Company and any of its officers or
directors or any affiliate or affiliates of any such officer or
director that is required by the Act or the 1933 Act Rules and
Regulations to be described in and is not described or incorporated by
reference in the Registration Statement and the Prospectus.
(xxix) Other than in connection with this Underwriting
Agreement, the Company has not taken, nor will it take, directly or
indirectly, any action designed to or which is reasonably expected to
cause or result in, or which has constituted or which is reasonably
expected to constitute, the stabilization or manipulation of the price
of the Common Stock to facilitate the sale or resale of any of the
Securities.
(xxx) For all applicable tax years as to which the
Company's tax returns are subject to audit and the Company is subject
to assessment for taxes reportable therein, the Company has
continuously been organized and operating in conformity with the
requirements for qualification as the real estate investment trust
under the Internal Revenue Code of 1986, as amended (the "Code"). The
Company's present operations are consistent with the current
requirements for taxation as a real estate investment trust under the
Code. The Company has no intention of changing its operations or
engaging in activities which would adversely affect its ability to
qualify as a real estate investment trust.
(xxxi) Neither the Company nor any Subsidiary is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(xxxii) The Securities have been approved for listing,
subject to official notice of issuance, on the NYSE or an application
therefor has been filed with the NYSE.
(xxxiii) The Securities to be offered by the Sellers were
registered pursuant to an effective registration statement under the
Act and no further registration of such Securities is required under
the Act to consummate the transactions contemplated by this
Underwriting Agreement.
(b) Representations and Warranties of the Sellers. Each
Seller, severally and not jointly, represents and warrants to and agrees with
you and the Company that:
(i) Each Seller has reviewed the information contained
in the Prospectus as it relates to each such Seller (which information
is described in Section 6(b) of this Underwriting Agreement); and such
Seller is not prompted to sell the Securities to be sold by such Seller
hereunder by any nonpublic information concerning the Company or any
Subsidiary.
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(ii) Each Seller has the full right, power and authority
to enter into this Underwriting Agreement and to sell, transfer and
deliver the Securities to be sold by such Seller hereunder. The
execution and delivery of this Underwriting Agreement and the sale and
delivery of the Securities to be sold by such Seller and the
consummation of the transactions contemplated herein and compliance by
such Seller with its obligations hereunder have been duly authorized by
each such Seller and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Securities
to be sold by such Seller pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, license, lease
or other agreement or instrument to which such Seller is a party or by
which such Seller may be bound, or to which any of the property or
assets of such Seller is subject, nor will such action result in any
violation of the provisions of the charter or by-laws or other
organizational instrument of such Seller or any applicable treaty, law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over such Seller or any of its properties or other
assets.
(iii) Such Seller has and will at the Closing Date have
good and marketable title to the Securities to be sold by such Seller
hereunder, free and clear of any security interest, mortgage, pledge,
lien, charge, claim, equity or encumbrance of any kind, other than
pursuant to this Underwriting Agreement; and upon delivery of such
Securities and payment of the purchase price therefor as herein
contemplated you will receive good and marketable title to the
Securities purchased by you from such Seller, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind (assuming you have no knowledge of any pledge,
lien, security interest, charge, claim, equity or encumbrance thereof).
(iv) Other than the execution of this Underwriting
Agreement, such Seller has not taken, and will not take, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(v) No filing with, or consent, approval,
authorization, order, registration, qualification or decree of, any
court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by each Seller of its
obligations hereunder, or in connection with the sale and delivery of
the Securities hereunder or the
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consummation of the transactions contemplated by this Agreement, except
such as may have previously been made or obtained or as may be required
under federal or state securities laws.
(vi) Certificates for all of the Securities to be sold
by or on behalf of such Seller pursuant to this Underwriting Agreement,
in suitable form for transfer, by delivery or accompanied by duly
executed instruments of transfer or assignment in blank, have been
delivered to you on or prior to the date hereof; provided, however, if
the necessary signature guarantees with respect to the foregoing
instruments or assignments have not been delivered to you on or prior
to the date of this Underwriting Agreement, then such signature
guarantees shall be delivered no later than date following the date of
this Underwriting Agreement.
(vii) Neither such Seller nor any of its affiliates
directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, or has any other
association with (within the meaning of the By-laws of the National
Association of Securities Dealers, Inc. ("NASD") any member firm of the
NASD.
(viii) None of the Sellers is an "affiliate" of the
Company within the meaning of the Act.
3. PURCHASE, SALE AND DELIVERY OF SECURITIES.
On the basis of the representations, warranties and agreements
contained herein, but subject to the terms and conditions set forth herein, the
Company agrees to issue and sell to you, and you agree to purchase from the
Company, the 4,000,000 shares of Common Stock being offered by the Company at a
purchase price of $11.25 per share before the deduction of an underwriting
discount equal to 5% (the "Purchase Price").
On the basis of the representations, warranties and agreements
contained herein, but subject to the terms and conditions set forth herein, the
Sellers, acting severally and not jointly, agree to sell to you and you agree to
purchase from the Sellers, 358,315 shares of Common Stock at the Purchase Price
(per share).
The Securities to be purchased by you will be delivered by the
Company and each Seller, to you at your office at 1285 Avenue of the Americas,
New York, New York 10019, in accordance with the terms of this Underwriting
Agreement and against payment of the purchase price therefor by wire transfer of
same day funds payable (i) to the order of the Company in the amount of $
42,750,000 at the bank account designated in writing by the Company at least one
day prior to the Closing Date and (ii) to the order of each Seller in the
amounts listed on Schedule A (net of any expenses, costs or reimbursements owed
by the Sellers hereunder),
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<PAGE> 13
at the bank account designated in writing by each such Seller at least one day
prior to the Closing Date, at 10:00 a.m., New York time, on January 14, 1997, or
at such other time not later than eight full business days thereafter as you and
the Company may mutually agree, such time being herein referred to as the
"Closing Date." If requested by you, the Securities offered by the Company will
be prepared in definitive form and in such authorized denominations and
registered in such names as you may request upon at least two business days'
prior notice to the Company and will be made available for checking and
packaging at your office at least one business day prior to the Closing Date.
4. COVENANTS.
(a) The Company and the Sellers (as and to the extent
specified below), severally and not jointly, covenant and agree with you that:
(i) The Company will cause the Prospectus Supplement to
be filed as required by Section 2(a)(i) hereof (but only if you or your
counsel have not reasonably objected thereto by notice to the Company
after having been furnished a copy a reasonable time prior to filing)
and will notify you promptly of such filing. During the period in which
a prospectus relating to the Securities is required to be delivered
under the Act, the Company will notify you promptly of the time when
any subsequent amendment to the Registration Statement has become
effective or any subsequent supplement to the Prospectus has been filed
and of any request by the Commission for any amendment or supplement to
the Registration Statement or Prospectus or for additional information;
the Company will prepare and file with the Commission, promptly upon
your request, any amendments or supplements to the Registration
Statement or Prospectus that, in your opinion, may be necessary or
advisable in connection with your distribution of the Securities; and
the Company will file no amendment or supplement to the Registration
Statement or Prospectus (other than any prospectus supplement relating
to the offering of other securities registered under the Registration
Statement or any document required to be filed under the Exchange Act
that upon filing is deemed to be incorporated by reference therein) to
which you or your counsel shall reasonably object by notice to the
Company after having been furnished a copy a reasonable time prior to
the filing.
(ii) The Company will advise you, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification or
registration of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for
any such purpose; and it will promptly use its best efforts to prevent
the issuance of
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<PAGE> 14
any stop order or to obtain its withdrawal if such a stop order should
be issued.
(iii) The Company will comply with all requirements
imposed upon it by the Act, the 1933 Act Rules and Regulations, the
Exchange Act and the Exchange Act Rules and Regulations as from time to
time in force, so far as necessary to permit the continuance of sales
of, or dealings in, the Securities as contemplated by the provisions
hereof and the Prospectus. If during such period any event occurs as a
result of which, in the opinion of your counsel, the Registration
Statement contains an untrue statement of a material fact or omits to
state a material fact required to be based therein or necessary to make
the statements therein not misleading or the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading, or if
during such period it is necessary to amend or supplement the
Registration Statement or Prospectus to comply with the Act, the
Company will promptly notify you and will amend or supplement the
Registration Statement or Prospectus (at the expense of the Company) so
as to correct such statement or omission or effect such compliance.
(iv) The Company will furnish to you copies of the
Registration Statement, the Prospectus (including all documents
incorporated by reference therein) and all amendments and supplements
to the Registration Statement and Prospectus that are filed with the
Commission during the period in which a prospectus relating to the
Securities is required to be delivered under the Act (including all
documents filed with the Commission during such period that are deemed
to be incorporated by reference therein), in each case as soon as
available and in such quantities as you may from time to time
reasonably request.
(v) During the period of five years commencing on the
date upon which Prospectus Supplement is filed pursuant to Rule 424(b)
under the Act, the Company will furnish you with copies of filings of
the Company under the Act and Exchange Act and with all other financial
statements and reports it distributes generally to the holders of any
class of its capital stock.
(vi) The Company will make generally available to its
security holders as soon as practicable and in the manner contemplated
by Rule 158 of the 1933 Act Rules and Regulations, but in any event not
later than 15 months after the end of the Company's current fiscal
quarter, an earning statement (which need not be audited) covering a
12-month period beginning after the date upon which the Prospectus
Supplement is filed pursuant to Rule 424(b) under the Act that shall
satisfy the provisions of Section 11(a) of the Act and
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<PAGE> 15
Rule 158 of the 1933 Act Rules and Regulations and will advise you in
writing when such statement has been made available.
(vii) (1) Whether or not the transactions contemplated by
this Underwriting Agreement are consummated or this Underwriting
Agreement is terminated, the Company and the Sellers will pay, or
reimburse if paid by you, all costs and expenses incident to the
performance of the obligations of the Company and the Sellers under
this Underwriting Agreement, including but not limited to costs and
expenses of or relating to (A) the preparation, printing and filing of
the Registration Statement and exhibits thereto, the Prospectus and any
amendment or supplement to the Registration Statement or the
Prospectus, (B) the preparation and delivery of certificates
representing the Securities, (C) the word processing and reproduction
of this Underwriting Agreement, (D) the costs incurred by the Company
in furnishing (including costs of shipping, mailing and courier) such
copies of the Registration Statement, the Prospectus and all amendments
and supplements thereto, as may be requested for use in connection with
the offering and sale of the Securities by you or by dealers to whom
Securities may be sold, (E) the listing of the Securities on the NYSE,
(F) any registration or qualification of the Securities for offer and
sale under the securities or blue sky laws of such jurisdictions
designated by you, including the reasonable fees, disbursements and
other charges of your counsel in connection therewith, and the
preparation of a Blue Sky memoranda, (G) counsel to the Company, (H)
the transfer agent for the Securities and (I) Arthur Andersen LLP or
any other accountants engaged by the Company in connection with the
offering of the Securities. The Sellers shall pay and reimburse the
Company on the Closing Date $15,000 as their share of all costs and
expenses payable by the Company and the Sellers hereunder (such amount
to be deducted by you from the amounts payable to the Sellers hereunder
and remitted by you to the Company); provided, however, the Sellers
shall not be responsible for any payment or reimbursement to the
Company if this Underwriting Agreement is terminated, in accordance
with its terms, other than as a result of any action or inaction by the
Sellers.
(2) The Sellers, jointly and severally, also
will pay all expenses incident to the performance of their respective
obligations under, and the consummation of the transactions
contemplated by this Underwriting Agreement, including any stamp
duties, capital duties and stock transfer taxes, if any, payable upon
the sale of the Securities by such Sellers to you.
(viii) If this Underwriting Agreement shall be terminated
pursuant to any of the provisions hereof or if for any reason the
Company or the Sellers shall be unable to perform their obligations
hereunder, the Company will reimburse you for all out-of-pocket
expenses (including the
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<PAGE> 16
reasonable fees, disbursements and other charges of your counsel)
incurred by you in connection herewith. In the event that any Seller
does not perform its obligations hereunder when due or if any of
Seller's representations, warranties or covenants are breached or
unfulfilled, all of the Seller's registration and resale rights,
granted by the Company with respect to shares of Common Stock shall
terminate and be of no further force or effect. The Seller's
obligations under this paragraph shall be joint and several among the
Sellers. The obligations of the Company, on the one hand, and the
Sellers, on the other, shall be several and not joint.
(ix) Other than in connection with this Underwriting
Agreement, the Company and the Sellers will not at any time, directly
or indirectly, take any action designed to, or which might reasonably
be expected to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization of the
price of the Common Stock to facilitate the sale or resale of any of
the Securities.
(x) The Company will apply the net proceeds to the
Company from the sale of the Securities by the Company as set forth
under the caption "Use of Proceeds" in the Prospectus Supplement.
(xi) (1) The Company, its executive officers and the
members of its Board of Directors will not, directly or indirectly,
offer, sell, contract to sell, grant any option to sell, or otherwise
dispose of any shares of capital stock of the Company or securities
convertible into or exchangeable for, or any rights to purchase or
acquire, shares of capital stock of the Company, except for (A) the
grant or exercise of stock options in reasonable amounts in the
ordinary course of the Company's business, (B) shares of capital stock
of the Company issuable for the purpose of the repurchase, redemption
or conversion of, or the exchange for, the Company's 7.3% Convertible
Subordinated Debentures, in whole or in part, (C) shares of Common
Stock issuable pursuant to the Company's dividend reinvestment plan,
and (D) shares of capital stock issuable in connection with the
acquisition, directly or indirectly, of additional properties, prior to
the expiration of 90 days from the date of this Underwriting Agreement
without your prior written consent.
(2) Other than in connection with this Underwriting
Agreement, the Sellers will not, directly or indirectly, offer, sell,
contract to sell, grant any option to sell or otherwise dispose of any
shares of capital stock of the Company or securities convertible into
or exchangeable for, or any rights to purchase or acquire, shares of
capital stock of the Company, prior to the expiration of 90 days from
the date of this Underwriting Agreement without your prior written
consent.
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<PAGE> 17
(xii) The Company will continue to elect to qualify as a
"real estate investment trust" under the Code, and will use its best
efforts to continue to meet the requirements to qualify as a "real
estate investment trust."
(b) The Sellers, severally and jointly, covenant and agree
with you and the Company that if the Prospectus as amended or supplemented would
include an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances then
existing, not misleading solely with respect to any information contained
therein regarding the Sellers (which information is described in Section 6(b) of
this Underwriting Agreement), the Sellers will promptly notify you and the
Company in order to permit the Company to amend or supplement the Prospectus (at
the Sellers' expense) so as to correct such statement or omission.
5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. Your obligation to
purchase and pay for the Securities as provided herein shall be subject to the
accuracy, as of the date hereof and the Closing Date (as if made at the Closing
Date), of the representations and warranties of the Company and Sellers herein,
to the performance by the Company and Sellers of their respective obligations
hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed by the
Company as required by Section 2(a)(i) hereof; and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been
instituted or, to your knowledge or the knowledge of the Company,
threatened by the Commission, nor, to your knowledge or the knowledge
of the Company, has any state securities authority suspended the
qualification or registration of the Securities for offering or sale in
any jurisdiction, and any request of the Commission for additional
information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the
satisfaction of you and your counsel.
(b) You shall not have advised the Company that the
Registration Statement, or any amendment thereto, contains an untrue
statement of fact that in the reasonable opinion of you or your counsel
is material or omits to state a fact that in the opinion of you or your
counsel is material and is required to be stated therein or is
necessary to make the statements therein not misleading, or that the
Prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact that in the opinion of you and your counsel is
material or is necessary, in the light of the circumstances under which
they were made, to make the statements therein not misleading and which
statement has not been or is not being corrected to your satisfaction.
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<PAGE> 18
(c) Except as contemplated in the Prospectus
Supplement, subsequent to the respective dates as of which information
is included or incorporated in the Registration Statement, the
Prospectus and the Prospectus Supplement, there shall not have been any
change, on a consolidated basis, in the equity capitalization,
short-term debt or long-term debt of the Company, or any adverse
change, or any development involving a prospective adverse change, in
the condition (financial or other), business, prospects, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole or any adverse change in the rating assigned to any securities of
the Company, that, in your judgment, makes it impractical or
inadvisable to offer or deliver the Securities on the terms and in the
manner contemplated in the Prospectus.
(d) You shall have received the opinion of Alston &
Bird, counsel for the Company, dated the Closing Date, in form and
substance reasonably satisfactory to your counsel to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation and in good standing
under the laws of its jurisdiction of incorporation, has full
corporate power and authority to conduct its business as
described in the Registration Statement and Prospectus, and is
duly qualified or registered to do business in each
jurisdiction in which it owns or leases real property or in
which the conduct of its business requires such qualification
or registration, except where the failure to be so qualified
or registered, considering all such cases in the aggregate, is
not reasonably likely to have a material adverse effect on the
business, properties, financial position or results of
operations of the Company and its Subsidiaries taken as a
whole;
(ii) The Company has authorized and issued
capital stock as set forth in its Quarterly Report on Form
10-Q for the quarter ended September 30, 1996; the
certificates evidencing the Securities are in due and proper
legal form and have been duly authorized for issuance by the
Company; and all of the outstanding shares of capital stock of
the Company are fully paid and nonassessable and none of them
was issued in violation of any preemptive or other similar
right. The Securities offered by the Company have been duly
authorized by the Company for issuance and sale and when
issued and sold pursuant to this Underwriting Agreement will
be duly and validly issued, fully paid and nonassessable and
none of them will have been issued in violation of any
preemptive or other similar right. The Securities offered by
the Sellers have been duly authorized and have been fully paid
and are non-assessable. Except as disclosed in the
Registration Statement and the Prospectus, there is no
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<PAGE> 19
outstanding option, warrant or other right calling for the
issuance of, and, to the knowledge of such counsel, no
commitment, plan or arrangement to issue, any share of capital
stock of the Company or any security convertible into,
exercisable for, or exchangeable for capital stock of the
Company. Except for the Sellers, no holder of any security of
the Company has the right to have any security owned by such
holder included for registration in the Registration Statement
or to demand registration of any security owned by such holder
during the 180 days after the date of this Agreement. The
Common Stock and the Securities offered by the Company
conform, or will conform, in all material respects to the
descriptions thereof contained in the Registration Statement
and the Prospectus. The form of certificate used to evidence
the Securities offered by the Company is in due and proper
form and complies with all applicable statutory requirements,
with any applicable requirements of the Company's
organizational documents and with the requirements of the
NYSE.
(iii) The Registration Statement has become
effective under the Act, the Prospectus Supplement has been
filed as required by Section 2(a) hereof and, to the best
knowledge of such counsel, after due inquiry, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been
instituted or threatened by the Commission;
(iv) Each part of the Registration Statement,
when such part became effective, and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof
with the Commission and at the Closing Date, complied as to
form in all material respects with the requirements of the Act
and the 1933 Act Rules and Regulations, and such counsel has
no reason to believe that either (A) any part of the
Registration Statement (excluding any prospectus supplement
with respect to an offering of securities other than the
offering of the Common Stock by the Company contemplated
hereby), when such part became effective or was filed under
the Act or the Exchange Act, contained an untrue statement of
a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or (B) the Prospectus and any amendment
or supplement thereto, on the date of filing thereof with the
Commission or at the Closing Date, included an untrue
statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
and the documents incorporated by reference in the
Registration Statement or Prospectus or any amendment or
supplement
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<PAGE> 20
thereto, when they became effective under the Act or were
filed with the Commission under the Act or the Exchange Act,
as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder; it being understood that such counsel need express
no opinion as to (i) the financial statements or other
financial data included in any documents mentioned in this
clause and (ii) any information regarding the Sellers except
as expressly provided herein;
(v) This Underwriting Agreement has been duly
authorized, executed and delivered by the Company; the
execution, delivery and performance of this Underwriting
Agreement and the consummation of the transactions
contemplated herein will not result in a breach or violation
of any of the terms and provisions of, or constitute a default
under, any statute, the articles of incorporation or by-laws
of the Company;
(vi) For all applicable tax years as to which
the Company's tax returns are subject to audit and the Company
is subject to assessment for taxes reportable therein, the
Company has continuously been organized and operated in
conformity with the requirements for qualification as a "real
estate investment trust" under the Code. The Company's method
of operation will permit it to continue to meet the
requirements for taxation as a "real estate investment trust"
under the Code. The summary description of the federal income
tax treatment described in the Prospectus under the caption
"Taxation" is accurate in material respects;
(vii) The agreements of the Company, its
executive officers and the members of its Board of Directors
delivered pursuant to Section 4(a)(xi) hereof have been duly
and validly executed and delivered by such parties and
constitute the legal, valid and binding obligation of each
such party enforceable against each such party in accordance
with its terms, except as the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable
principles;
(viii) The Company is not subject to the
provisions of Section 14-2-1131 through 14-2-1133 of the
Georgia Business Corporation Code;
(ix) Neither the Company nor any of its
Subsidiaries is an "investment company" within the
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meaning of the Investment Company Act of 1940, as amended.
(x) The Securities to be offered by the
Sellers were registered pursuant to an effective registration
statement under the Act and no further registration of such
Securities is required under the Act to consummate the
transactions contemplated by this Underwriting Agreement.
(e) You shall have received the opinion of Ben Jones,
Esq., Executive Vice President of the Company, dated the Closing Date,
in form and substance satisfactory to your counsel to the effect that:
(i) All of the issued and outstanding shares
of capital stock of the Company have been duly and validly
authorized and have been duly and validly issued;
(ii) Each of the Subsidiaries has been duly
incorporated or formed, as the case may be, and is validly
existing as a corporation, general or limited partnership or
other legal entity, as the case may be, and in good standing
under the laws of its jurisdiction of incorporation or
formation, as the case may be, has full power (corporate or
other) and authority to conduct its business as described in
the Registration Statement and Prospectus, and is duly
qualified or registered to do business in each jurisdiction in
which it owns or leases real property or in which the conduct
of its business requires such qualification or registration,
except where the failure to be so qualified or registered,
considering all such cases in the aggregate, is not reasonably
likely to have a material adverse effect on the business,
financial position or results of operations of the Company and
its Subsidiaries taken as a whole;
(iii) The descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental
proceedings, contracts and other documents are accurate and
fairly present, in all material respects, the information
required to be shown; and such counsel does not know of any
statutes or legal or governmental proceedings required to be
described in the Prospectus that are not described as
required, or of any contracts or documents of a character
required to be described in the Registration Statement or
Prospectus (or required to be filed under the Exchange Act if
upon such filing they would be incorporated by reference
therein) or to be filed as exhibits to the Registration
Statement that are not described and filed as required;
(iv) The execution, delivery and performance of
this Underwriting Agreement and the consummation of the
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<PAGE> 22
transactions contemplated herein will not result in a breach
or violation of any of the terms and provisions of, or
constitute a default under, (A) any statute, indenture,
mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or the evidence of
indebtedness, lease, contract or other agreement or instrument
to which the Company or its Subsidiaries are a party or by
which they are bound or to which any of the property or other
assets of the Company or its Subsidiaries is subject, (B) the
articles of incorporation, by-laws, certificate of general or
limited partnership, partnership agreement or other
organizational document of the Company or any of its
Subsidiaries, as applicable, or (C) any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or its Subsidiaries or any of
their properties or other assets; and no consent, approval,
authorization, notice to, order of, or filing with, any court
or governmental agency or body is required for the
consummation of the transactions contemplated by this
Agreement in connection with the issuance or sale of the
Securities by the Company, except such as have been obtained
under the Act or obtained from the NYSE or the absence of
which would not have a material adverse effect upon the
business, prospects, condition (financial or other), net worth
or results of operations of the Company audits and its
Subsidiaries taken as a whole;
(v) Neither the Company nor any of its
Subsidiaries is in violation of any term or provision of their
respective articles of incorporation, by-laws, certificate of
general or limited partnership, partnership agreement or other
organizational document, as applicable, or in violation of or
default under any indenture, mortgage, deed of trust, voting
trust agreement, loan agreement, bond, debenture, note
agreement or evidence of indebtedness, lease, contract,
permit, judgment, decree, order, statute, rule or regulation,
except where such default would not have a material adverse
effect on the Company and its Subsidiaries on a consolidated
basis; and
(vi) There is no litigation or governmental or
other proceeding or investigation, before any court or before
or by any public body or board pending or, or to such
counsel's knowledge, threatened against, or involving the
assets, properties or businesses of, the Company or any of its
Subsidiaries, involving the Company's or any of its
Subsidiaries' officers or directors or to which any of the
Company's or any of its Subsidiaries' properties or other
assets is subject which would have a material adverse effect
upon the assets or properties, business, results of
operations, prospects or
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<PAGE> 23
condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole.
(f) You shall have received the opinion of Tenzer
Greenblatt LLP, counsel for the Sellers, dated the Closing Date and
addressed to you and the Company, in form and substance reasonably
satisfactory to your counsel and the Company's counsel to the effect
that:
(i) To the best of our knowledge, no filing
with, or consent, approval, authorization, license, order,
registration, qualification or decree of any court or
governmental authority or agency, domestic or foreign, is
necessary or required to be obtained by the Sellers for the
performance by each Seller of its obligations under this
Underwriting Agreement, or in connection with the offer, sale
or delivery of the Securities offered by the Sellers, except
such as may have previously been made or obtained or as may be
required under federal or state securities laws;
(ii) This Underwriting Agreement has been duly
authorized, executed and delivered by or on behalf of each
Seller;
(iii) To the best of our knowledge, none of the
Sellers is an affiliate of the Company within the meaning of
the Act;
(iv) The execution, delivery and performance of
this Underwriting Agreement and the sale and delivery of the
Securities and the consummation of the transactions
contemplated in this Underwriting Agreement and compliance by
each Seller and with its obligations under this Underwriting
Agreement have been duly authorized by all necessary action on
the part of the Sellers and will not result in any violation
of the provisions of the charter or by-laws of the Sellers
and, to the best of our knowledge, do not and will not,
whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or
default under or result in the creation or imposition of any
tax, lien, charge or encumbrance upon the Securities to be
sold by the Sellers pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note,
license, lease or other instrument or agreement to which any
Seller is a party or by which it may be bound, or to which any
of the property or assets of the Seller may be subject, or, to
the best of our knowledge, any law, administrative regulation,
judgment or order of any governmental agency or body or any
administrative or court decree having jurisdiction over such
Seller or any of its properties or other assets, except under
federal or state securities laws; and
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<PAGE> 24
(v) To the best of our knowledge, (a) each
Seller has valid and marketable title to the Securities to be
sold by such Seller pursuant to this Underwriting Agreement,
free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind (assuming you have no
knowledge of any pledge, lien, security interest, charge,
claim, equity or encumbrance thereof), (b) each of the Sellers
has full right, power and authority to sell, transfer and
deliver such Securities pursuant to this Underwriting
Agreement, and (c) delivery of a certificate or certificates
therefor such Seller will transfer to you such Securities
pursuant to this Underwriting Agreement valid and marketable
title to such Securities, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any
kind (assuming you have no knowledge of any pledge, lien,
security interest, charge, claim, equity or encumbrance
thereof).
(g) You shall have received from Rogers & Wells, your
counsel, such opinion or opinions, dated the Closing Date, with respect
to the organization of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as you
reasonably may request, and such counsel shall have received such
papers and information as they request to enable them to pass upon such
matters.
(h) At the time of execution of this Agreement and at
the Closing Date, you shall have received a letter, dated the date of
delivery thereof, from Arthur Andersen LLP, the independent public
accountants of the Company, in the form previously agreed to by you.
(i) You shall have received from the Company a
certificate, signed by the President or a Vice President and by the
principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that, to the best of their knowledge based
upon reasonable investigation:
(i) The representations and warranties of the
Company in this Underwriting Agreement are true and correct,
as if made at and as of the Closing Date, and the Company has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) No stop order suspending the effectiveness
of the Registration Statement has been issued, and no
proceeding for that purpose has been instituted or is
threatened by the Commission and, if applicable, no state
securities authority has suspended the qualification or
registration of the Securities for offering or sale in any
jurisdiction;
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<PAGE> 25
(iii) Since the effective date of the
Registration Statement, there has occurred no event required
to be set forth in an amendment or supplement to the
Registration Statement or Prospectus that has not been so set
forth, and there has been no document required to be filed
under the Exchange Act and the Exchange Act Rules and
Regulations that upon such filing would be deemed to be
incorporated by reference in the Prospectus that has not been
so filed;
(iv) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, (A) there has not been, and no development has
occurred which could reasonably be expected to result in, a
material adverse change in the general affairs, business,
business prospects, properties, management, condition
(financial or otherwise) or results of operations of the
Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
in each case other than as set forth in or contemplated by the
Registration Statement and the Prospectus and (B) neither the
Company nor any of its Subsidiaries has sustained any material
loss or interference with its business or properties from
fire, explosion, flood or other casualty, whether or not
covered by insurance, or from any labor dispute or any court
or legislative or other governmental action, order or decree,
which is not set forth in the Registration Statement and the
Prospectus; and
(v) such other matters as you may reasonable
request.
(j) On the Closing Date, you shall have received a
certificate from each Seller, dated as of the Closing Date, to the
effect that (i) the representations and warranties of such Seller
contained in Section 2(b) hereof are true and correct in all respects
with the same force and effect as though expressly made at and as of
the Closing Date and (ii) such Seller has complied in all material
respects with all agreements and all conditions on its part to be
performed under this Underwriting Agreement at or prior to the Closing
Date.
(k) On or prior to the Closing Date, you shall have
received the executed agreements referred to in Section 4(a)(xi).
(l) Prior to the Closing Date, the Securities shall
have been duly authorized for listing by the NYSE upon official notice
of issuance.
25
<PAGE> 26
(m) All such opinions, certificates, letters and
other documents will be in compliance with the provisions hereof only
if they are reasonably satisfactory in form and substance to you and
your counsel. The Company and/or each Seller will furnish you with such
conformed copies of such opinions, certificates, letters and other
documents as you shall reasonably request.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless you and
your directors, officers, employees, agents and representatives and each person,
if any, who controls you within the meaning of Section 15 of the Act or Section
20 of the Exchange Act and each Seller, its respective directors, officers,
employees, agents and representatives and each person, if any, who controls such
Seller within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, liabilities, expenses and
damages (including, but not limited to, any and all investigative, legal and
other expenses reasonably incurred in connection with, and any and all amounts
paid in settlement of, any action, suit or proceeding between any of the
indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when
incurred to which you, each Seller or any such person, may become subject under
the Act, the Exchange Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, liabilities,
expenses or damages arise out of or are based on (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus or any amendment or supplement to the Registration
Statement or the Prospectus or in any documents filed under the Exchange Act and
deemed to be incorporated by reference into the Prospectus, or in any
application or other document executed by or on behalf of the Company or based
on written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Securities under the securities or blue sky
laws thereof or filed with the Commission, (ii) the omission or alleged omission
to state in such document a material fact required to be stated in it or
necessary to make the statements in it not misleading or (iii) any act or
failure to act or any alleged act or failure to act by you in connection with,
or relating in any manner to, the Securities or the offering contemplated
hereby, and which is included as part of, or referred to in, any loss, claim,
damage, liability or action arising out of or based upon matters covered by
clause (i) or (ii) above (provided that the Company shall not be liable under
this clause (iii) to the extent it is finally determined by the Commission or a
court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by you through your gross negligence or willful misconduct);
provided that the Company will not be liable to the extent that such loss,
claim, liability, expense or damage arises from the sale of the Securities
26
<PAGE> 27
in the public offering to any person and is based on an untrue statement or
omission or alleged untrue statement or omission made in reliance on and in
conformity with information relating to (i) you furnished in writing to the
Company by you expressly for inclusion in the Registration Statement or the
Prospectus or (ii) the Sellers furnished to the Company by the Sellers expressly
for inclusion in the Prospectus (which information is described in Section
6(b)). You confirm to the Company, and the Company acknowledges that only the
following information appearing in the Prospectus with respect to the public
offering of the Securities has been furnished to the Company by you for use in
the Prospectus: (i) your name contained on the cover page and back cover page of
the Prospectus Supplement; (ii) the last full paragraph contained on the cover
page of the Prospectus Supplement; (iii) the stabilization legend on the inside
front cover page of the Prospectus Supplement; and (iv) the information in the
second paragraph under the caption "Underwriting" in the Prospectus Supplement.
This indemnity agreement will be in addition to any liability that the Company
might otherwise have.
(b) The Sellers, severally and not jointly, will indemnify and
hold harmless you and the Company, your and the Company's directors, officers,
employees, agents and representatives, and each person, if any, who controls you
and the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, liabilities, expenses
and damages (including, but not limited to, any and all investigative, legal and
other expenses reasonably incurred in connection with, and any and all amounts
paid in settlement of, any action, suit or proceeding between any of the
indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when
incurred to which you, the Company or any such person, may become subject under
the Act, the Exchange Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, liabilities,
expenses or damages arise out of or are based on (i) any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus or any
amendment or supplement to the Prospectus, (ii) the omission or alleged omission
to state in such document a material fact required to be stated in it or
necessary to make the statements in it not misleading or (iii) any act or
failure to act or any alleged act or failure to act by you in connection with,
or relating in any manner to, the Securities offered by the Sellers or the
offering contemplated hereby, and which is included as part of, or referred to
in, any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (provided that the Sellers shall not
be liable under this clause (iii) to the extent it is finally determined by the
Commission or a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by you or the Company through your or their
gross negligence or willful misconduct); but only insofar as such losses,
claims, liabilities,
27
<PAGE> 28
expenses or damages arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in reliance on and in
conformity with information relating to the Sellers furnished to the Company by
the Sellers in writing expressly for use in the Prospectus. The Sellers confirm
to the Company, and the Company acknowledges, that only the following
information appearing in the Prospectus with respect to the public offering of
Securities has been furnished to the Company by the Sellers for use in the
Prospectus: (i) the number of Securities being offered by Sellers contained on
the cover page of the Prospectus Supplement; (ii) the number of Securities being
offered by Sellers contained in footnote (1) under the caption "Prospectus
Supplement Summary -- The Offering" in the Prospectus Supplement; and (iii) the
information directly relating to the Sellers in the first, fourth and fifth
paragraphs under the caption "Underwriting" in the Prospectus Supplement. This
indemnity agreement will be in addition to any liability that the Sellers might
otherwise have. Notwithstanding any other provision of this Section 6(b), in no
case shall the Sellers be liable or responsible for any amount in excess of the
net proceeds received by them in connection with the sale of the Securities
being offered by them hereunder.
(c) You will indemnify and hold harmless the Company, its
directors, officers, employees, agents and representatives, and each person, if
any, who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and each Seller, its directors, officers,
employees, agents and representatives and each person, if any, who controls any
Seller within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to you, but
only insofar as losses, claims, liabilities, expenses or damages arise out of or
are based on any untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information relating to you
furnished in writing to the Company by you expressly for use in the Registration
Statement or the Prospectus. This indemnity will be in addition to any liability
that you might otherwise have. Notwithstanding any other provision of this
Section 6(c), in no case shall you be liable or responsible for any amount in
excess of the underwriting discounts and commissions received by you.
(d) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 6, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party
will not relieve it from any liability that it may have to any indemnified party
under the foregoing provisions of this Section 6 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
28
<PAGE> 29
indemnifying party will be entitled to participate in and, to the extent that it
elects by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the
defense of the action, with counsel satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (i) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (ii) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (iii) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (iv) the indemnifying
party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
additional firm admitted to practice in such jurisdiction at any one time for
all such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent will not be
unreasonably withheld); provided, however, no indemnifying party shall, without
the prior written consent of each indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding relating to the matters contemplated by this Section 6 (whether or
not any indemnified party is a party thereto), unless such settlement,
compromise or consent includes an unconditional full release of each indemnified
party from all liability arising or that may arise out of such claim, action or
proceeding. Notwithstanding any other provision of this Section 6(d), if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement effected
without its written consent if (x) such settlement is entered into more than 45
days after receipt by such
29
<PAGE> 30
indemnifying party of the aforesaid request, (y) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (z) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company, the Sellers or you, the
Company, the Sellers and you will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company and the Sellers,
respectively, from persons other than you who may be liable for contribution) to
which the Company, the Sellers and you may be subject in such proportion as
shall be appropriate to reflect the relative benefits received by the Company on
the one hand, the Sellers on the other, and you on the other. The relative
benefits received by the Company on the one hand, the Sellers on the other, and
you on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the Sellers bear to the total underwriting discounts and commissions
received by you, in each case as set forth in the table on the cover page of the
Prospectus Supplement. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the
relative benefits referred to in the foregoing sentence but also the relative
fault of the Company on the one hand, the Sellers on the other, and you on the
other with respect to the statements or omissions which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as well as
any other relevant equitable considerations with respect to such offering. Such
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the Sellers or
you, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Sellers and you agree that it would not be just and equitable
if contributions pursuant to this Section 6(e) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, liability, expense or
damage, or action in respect thereof, referred to above in this Section 6(e)
shall be deemed to include, for purpose of this Section 6(e), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or
30
<PAGE> 31
defending any such action or claim. Notwithstanding the provisions of this
Section 6(e), you shall not be required to contribute any amount in excess of
the underwriting discounts and commissions received by you, the Sellers shall
not be required to contribute any amount in excess of the net proceeds received
by them and no person found guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) will be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6(e), any person who controls a party to this Underwriting
Agreement within the meaning of the Act will have the same rights to
contribution as that party, and each officer and director of the Company who
signed the Registration Statement will have the same rights to contribution as
the Company, subject in each case to the provisions hereof. Any party entitled
to contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 6(e), will notify any party or parties from whom contribution
may be sought, but the omission so to notify will not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have under this Section 6(e). Except for a settlement entered into
pursuant to the last sentence of Section 6(d) hereof, no party will be liable
for contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
(f) The indemnity and contribution agreements contained in
this Section 6 shall remain operative and in full force and effect regardless of
(i) any investigation made by or on behalf of you, (ii) acceptance of the
Securities and payment therefor or (iii) any termination of this Underwriting
Agreement. The indemnity and contribution obligations of the Company and of the
Sellers under this Section 6 are several and not joint.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Company and the Sellers
contained herein or in certificates delivered pursuant hereto, and your
agreements contained in Section 6 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of you or
any controlling persons, or the Company or any of its officers, directors or
controlling persons, or the Sellers or any of their controlling persons, and
shall survive delivery of and payment for the Securities hereunder.
8. TERMINATION. You shall have the right by giving notice as
hereinafter specified at any time at or prior to the Closing Date, to terminate
this Underwriting Agreement if (i) the Company and the Sellers shall have
failed, refused or been unable, at or prior to the Closing Date, to perform any
agreement on its part to be performed hereunder, (ii) any other condition of
your obligations hereunder is not fulfilled when due, (iii) trading on the NYSE
shall have been wholly suspended, (iv) minimum or maximum
31
<PAGE> 32
prices for trading shall have been fixed for the Common Stock, or maximum ranges
for prices for the Common Stock shall have been required on the NYSE by the NYSE
or by order of the Commission or any other governmental authority having
jurisdiction, (v) a banking moratorium shall have been declared by federal or
New York authorities, or (vi) an outbreak of major hostilities in which the
United States is involved, a declaration of war by Congress, any other
substantial national or international calamity or any other event or occurrence
of a similar character shall have occurred since the execution of this Agreement
that, in your judgment, makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Securities. Any such termination
shall be without liability of any party to any other party with respect to
Securities not purchased by reason of such termination except that the
provisions of Sections 4(a)(vii) and 6 hereof shall at all times be effective.
If you elect to terminate this Underwriting Agreement as provided in this
Section, the Company and the Sellers shall be notified promptly by you by
telephone, telex or telecopy, confirmed by letter.
9. NOTICES. All notices or communications hereunder shall be
in writing and if sent to you shall be mailed, delivered, telexed or telecopied
and confirmed to you at 1285 Avenue of the Americas, New York, New York 10019,
Attention: Corporate Finance Department (with copy to Jay L. Bernstein, Esq.,
c/o Rogers & Wells, 200 Park Avenue, New York, New York 10166), or if sent to
the Company, shall be mailed, delivered, telexed or telecopied and confirmed to
the Company at 200 Galleria Parkway, Suite 1400, Atlanta, Georgia 30339,
Attention: Ben Jones, Esq. (with copy to Ralph F. MacDonald, III, Esq. c/o
Alston & Bird, 1201 West Peachtree Street, Atlanta, Georgia 30309-3424), or if
sent to the Sellers, shall be mailed, delivered, telexed or telecopied and
confirmed to the Sellers c/o DRA Advisors, 1180 Avenue of the Americas, 18th
floor, New York, New York 10036 (with a copy to Martin Luskin, Esq. c/o Tenzer
Greenblatt LLP, 405 Lexington Avenue, New York, New York 10174). Any party to
this Underwriting Agreement may change such address for notices by sending to
the other party to this Underwriting Agreement written notice of a new address
for such purpose.
10. PARTIES. This Agreement shall inure to the benefit of, and
be binding upon, the Company, the Sellers and you and our respective successors
and the controlling persons, officers, directors, employees and representatives
referred to in Section 6 hereof, and no other person will have any right or
obligation hereunder.
11. APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
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<PAGE> 33
12. OVERALLOTMENT OPTION.
(a) In addition to the Securities being sold by the Company
and the Sellers and described in Section 1 hereof (which are referred to herein
as the "Firm Securities"), you, at your option, shall have the right to purchase
from the Company up to an aggregate of 653,747 additional shares of Common Stock
(the "Optional Securities"). The two paragraphs of Section 3 hereof shall be
deemed to apply only to the purchase, sale and delivery of the Firm Securities.
References in those two paragraphs to the "Securities" shall be deemed to be
references to the "Firm Securities;" except as otherwise provided in this
Section 12, other references in this Agreement to the "Securities" shall be
deemed to include the Firm Securities and the Optional Securities.
(b) Upon written notice from you given to the Company not more
than 30 days subsequent to the date of the public offering of the Securities,
you may purchase all or less than all of the Optional Securities at the purchase
price per share to be paid for the Firm Securities. Such Optional Securities may
be purchased by you only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be surrendered and terminated at any time
upon notice by you to the Company. The "Closing Date" as defined in Section 3
hereof, shall be deemed to be the "First Closing Date," and the time for the
delivery of, and payment for, the Optional Securities, is herein referred to as
the "Option Closing Date" (which may be the First Closing Date). The Option
Closing Date shall be determined by you but shall be not later than 10 days
after you give to the Company written notice of election to purchase Optional
Securities. The preparation, registration, checking and delivery of, and payment
for, the Optional Securities shall occur or be made in the same manner as
provided in Section 3 hereof for the Firm Securities, except as you and the
Company may otherwise agree.
(c) The conditions to your obligations set forth in Section 5
shall be deemed to be conditions to your obligation to purchase and pay for the
Securities to be purchased on each of the First Closing Date and the Option
Closing Date, as the case may be; references in that Section and in Sections 2,
8 and 9 hereof to the "Closing Date" shall be deemed to be references to the
First Closing Date or the Option Closing Date, as the case may be, and
references to the "Securities" in Section 5 hereof shall be deemed to be
references to the Securities to be purchased at such Closing Date. A termination
of this Agreement as to the Optional Securities after the First Closing Date
will not terminate this Agreement as to the Firm Securities.
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<PAGE> 34
If the foregoing correctly sets forth the understanding
between the Company, the Sellers and you, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a
binding agreement among the Company, the Sellers and you.
Very truly yours,
IRT PROPERTY COMPANY
By:
------------------------------
Name:
-----------------------
Title:
----------------------
DRM FIVE REALTY CORPORATION
By:
------------------------------
Name: Andrew E. Peltz
Title: Vice President
DRM SIXTEEN REALTY CORPORATION
By:
------------------------------
Name: Andrew E. Peltz
Title: Vice President
DRM NINETEEN REALTY
CORPORATION
By:
------------------------------
Name: Andrew E. Peltz
Title: Vice President
DRM TWENTY-EIGHT REALTY
CORPORATION
By:
------------------------------
Name: Andrew E. Peltz
Title: Vice President
ACCEPTED as of the date first above written
PAINEWEBBER INCORPORATED
By:
-----------------------------------------
Name: David Jarvis
Title: Managing Director
34
<PAGE> 35
SCHEDULE A
Sellers
<TABLE>
<CAPTION>
Number of Shares
Sellers Being Offered Wire Transfer Amount
------- ------------- --------------------
<S> <C> <C>
DRM Five Realty Corporation 87,533 $931,844.58
DRM Sixteen Realty Corporation 117,300 $1,248,733.27
DRM Nineteen Realty Corporation 91,079 $969,594.00
DRM Twenty-Eight Realty 62,403 $664,319.71
Corporation
</TABLE>
<PAGE> 36
SCHEDULE B
Subsidiaries
1) IRT Capital Corp
2) IRT Management Company
3) VW Mall, Inc.
4) The Rudderson Company
<PAGE> 37
SCHEDULE C
Tenants with Options or Rights of First Refusal
1) The lessees under the following land-purchase-leaseback
investments have options to purchase the land leased to them by the
Company at established prices:
Manatee County Shopping Center
Lawrence County Shopping Center
2) Wal-Mart Stores, Inc. has a right of first refusal to purchase
facilities leased to them by the Company in Matthews, Louisiana and
Marble Falls, Texas.
